United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
C. BRACK, UNITED STATES DISTRICT JUDGE.
matter is before the Court on the City's Motion
Requesting Evidentiary Hearing Regarding Neutrality of
Independent Monitor (Doc. 311), filed on October 31, 2017.
For the reasons explained at the public hearing on this
matter on November 16, 2017, and for those described in this
Memorandum Opinion and Order, the Court will deny the Motion.
The Monitor's Role and Responsibilities
City asks the Court to hold an evidentiary hearing to inquire
into “certain statements and conduct by the Monitor and
monitoring team members [that] raise questions of potential
bias, . . . [and] to ensure that the monitoring process is
fair, impartial, and unbiased.” (Doc. 311 at 1-2.) The
City begins by comparing the Monitor to a special master and
argues that the Court should examine his conduct pursuant to
28 U.S.C. § 455. (Id. at 3.) While the Court
ultimately considers the City's allegations under this
standard, the Court disagrees that the Monitor is a special
master with quasi-judicial functions.
The Monitor was appointed to assess and report.
Parties laid out the Monitor's roles, responsibilities,
and expectations in a Joint Report filed on February 10,
2017. (Doc. 249-1.) The Parties agree that the Monitor's
“primary duties are to assess the City's
compliance with the CASA in an independent, objective, and
reliable manner, and to report on the City's
progress toward full compliance and provide recommendations
regarding the necessary steps to achieve compliance.”
(Doc. 249-1 at 1 (emphasis added).) The Monitor's duties
derive from four documents: (1) the CASA (Doc. 247-1 (CASA));
(2) the February 19, 2015 Order of Appointment (Doc. 103);
(3) the April 14, 2015 Order Accepting the Parties'
Stipulation Regarding the Terms and Conditions of the
Independent Monitor's Payment (Doc. 114); and (4) the
Monitoring Methodology Dr. Ginger created pursuant to ¶
300 of the CASA.
February 10, 2017 Joint Report, the Parties identified a
variety of paragraphs that delineate the Monitor's
“mandatory duties” (outlined in CASA ¶¶
147, 148, 221, 222, 294, 295, 296, 297, 298, 300, 301, 302,
303, 304, 306, 307, 308, 309, 310, 311, 312, 314, 321, 324,
326, 330, 331, 334, 338), “discretionary duties”
(outlined in CASA ¶¶ 299, 305, 320, 333), and a mix
of “mandatory and discretionary duties” (outlined
in CASA ¶ 313). In short, the Monitor's mandatory
duties include: review, approve, and resolve objections to
APD's new and revised policies/procedure/training/etc.
(CASA ¶¶ 147-48, 221-22); assess and report on
whether the requirements of the CASA have been implemented,
conduct reviews, audits, and assessments, make
recommendations on outcome measures (id.
¶¶ 294-98, 302); create methodology for
assessment/review (id. ¶ 303); review serious
use of force/misconduct complaint investigations, conduct
comprehensive compliance and outcome assessments at certain
dates (id. ¶¶ 304, 306- 09); communicate
through monthly meetings, etc., meet with community
stakeholders and hear community perspectives, maintain
confidentiality, avoid conflicts of interest (id.
¶¶ 310-312, 314, 321, 324, 326); prepare annual
budgets, inform parties of the need for technical assistance,
confer on needed changes, modifications, and amendments to
the CASA (id. ¶ 330-31, 334, 338).
discretionary duties include: may use data collected by APD
to conduct outcome assessments (id. ¶ 299); may
make recommendations on measures to ensure implementation of
the CASA objectives (i.e., training, etc.) (id.
¶ 305); may conduct on-site visits and assessments
without prior notice to City (id. ¶ 320); may
request permission to hire/contract with others who are
necessary to perform tasks (id. ¶ 333).
Paragraph 313 consists of a mix of mandatory and
discretionary duties and is related to when members of the
monitoring team may testify with respect to the CASA.
February 19, 2015 Order of Appointment (Doc. 103)
parties' filed a Joint Motion Requesting an Order
Appointing Dr. James D. Ginger as Independent Monitor, which
the Court granted on February 19, 2015. (Doc. 103.) The Court
Ultimately, the Independent Monitor will be responsible for
assessing and reporting whether the parties are fulfilling
their obligations under the consent decree. . . . Dr. Ginger
will ensure that the decree's implementation will produce
a police force that provides constitutional, effective, and
high-quality service to all Albuquerque residents. To
accomplish these critical tasks, Dr. Ginger will have the
duty and authority to conduct audits, gather data,
analyze outcomes, make recommendations, and report his
findings to the parties, the Court, and the public.
103 at 1 (citing CASA ¶¶ 294-327) (emphasis
April 14, 2015 Order Accepting the Parties' Stipulation
Regarding the Terms and Conditions of the
Independent Monitor's Payment (Doc. 114)
Order, which includes the Parties' Stipulation
Establishing the Independent Monitor's Office and the
Payment of Monitoring Expenses, mentions that Section XIII of
the CASA “outlines the Independent Monitor's
specific duties, responsibilities, and authority, including
conducting compliance reviews and audits; performing outcome
assessments; reviewing use of force and misconduct
investigations; preparing monitoring reports; providing
technical assistance; and assisting the Parties with informal
dispute resolution.” (Doc. 114 at 2.) It defines the
Independent Monitor's Office to include “the
Independent Monitor and all employees, agents, or independent
contractors selected pursuant to Paragraph 333 of the
Settlement Agreement.” (Id. at 3.) It further
specifies that “[i]n addition to the duties,
responsibilities, and authority set forth in the Settlement
Agreement, all employees, agents, or contractors
of the Independent Monitor's Office will comply with the
Code of Conduct for Judicial Employees, as
adopted by the Judicial Conference of the United
States.” (Id. at 4 (emphasis added).)
Code of Conduct for Judicial Employees
Code of Conduct for Judicial Employees contains two
rules relevant to the City's Motion, both in Canon 3,
entitled “A Judicial Employee Should Adhere to
Appropriate Standards in Performing the Duties of the
Canon 3(C) provides in part:
A judicial employee should be patient, dignified, respectful,
and courteous to all persons with whom the judicial employee
deals in an official capacity, including the general public,
and should require similar conduct of personnel subject to
the judicial employee's direction and control. A judicial
employee should diligently discharge the responsibilities of
the office in a prompt, efficient, nondiscriminatory, fair,
and professional manner.
Conduct for Judicial Employees, Canon 3(C).
Canon 3(F)(2), which relates to conflicts of ...